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People v. Jones

OPINION FILED NOVEMBER 13, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

SAM JONES ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Robert J. Collins, Judge presiding.

JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

After a bench trial, defendants, Sam Jones and Kirk Reynolds, were each convicted of two counts of armed robbery, two counts of armed violence based on armed robbery, three counts of aggravated battery, one count of armed violence based on aggravated battery, and one count of use of a deadly weapon. On appeal, defendants argue (1) the State failed to prove their guilt of armed violence because it failed to establish a knife used by defendant Jones had a blade of at least three inches; (2) defendants were not proved guilty of certain armed offenses because defendant Reynolds was not shown to be armed at the time of the crime; (3) various convictions should be vacated as arising out of the same acts as other crimes for which defendants were convicted; (4) the trial court erred in not suppressing defendants' confessions because the State failed to comply with the material witness rule; (5) defendant Jones was denied his sixth amendment rights to counsel at a lineup conducted after criminal charges were filed against him; (6) there was no probable cause for the arrest of defendant Reynolds; and (7) the lineup identification of defendant Reynolds was suggestive and tainted later in-court identification.

We affirm in part and vacate in part.

Terry Foley testified at 12:05 a.m. on December 23, 1982, she was sitting in a car with John Alsterda at 527 West Brompton. The car was parked between two street lamps. Both doors to the car were opened simultaneously from the outside. The interior lights of the car turned on. The lighting conditions in the car were excellent. A man, whom the witness identified as defendant Reynolds, leaned into her side of the car and grabbed her shopping bag and purse. His face was within about six inches of the witness. At the same time, the witness noticed another man struggling with Mr. Alsterda. After between 30 and 60 seconds, the two men ran south and east. She noticed Mr. Alsterda was bleeding. She began to drive to the hospital, when she saw a police car at Cornelia and Lake Shore Drive. She told two police officers in the car of the incident, and continued to the hospital.

At the hospital, the witness met with other policemen. She described her assailant as a black male, between 17 and 20 years old, about 5 feet 10 inches and 180 pounds, clean shaven and wearing a green army jacket and blue jeans. At about 3:15 a.m., the witness went to the police station, where she identified various articles taken in the robbery. At about 4:15, she viewed a lineup, where she identified defendant Reynolds.

On cross-examination, the witness denied that defendant Reynolds "looked damp" in a photograph of the lineup. The witness also denied she was told Reynolds was pulled from Lake Michigan.

John Alsterda testified that a man, whom he identified as defendant Jones, opened his car door, leaned into the car and stabbed him in the elbow and hand four times with a knife the witness described as "six to eight inches, like a filet knife." The lighting conditions were very good. Jones then asked the witness for his wallet and the keys to his car. After Jones got the wallet and keys, he fled, running east. At the hospital, the witness described his assailant as a black male about 17 to 20, 6 feet 2 inches, 250 pounds, clean shaven, with a protruding jaw, wearing a dark grey or navy wool overcoat.

The witness remained hospitalized. At about 9 a.m. on December 27, the witness identified defendant Jones in a lineup.

Chicago police officer Thomas Keane testified he interviewed defendant Jones at about 3:15 a.m. on December 23, 1982. The witness advised Jones of his Miranda rights. Jones indicated he understood his rights. Thereafter, Jones made a statement confessing to the robbery. Jones stated Alsterda was cut in a struggle for the knife.

Chicago police officer Thomas Sappanos testified he interviewed defendant Reynolds at about 3:15 a.m. on December 23, 1982. He informed Reynolds of his Miranda rights, and Reynolds indicated he understood those rights. Thereafter, Reynolds made a statement confessing to the robbery. Reynolds stated he took Ms. Foley's shopping bag and purse. He took the loot to a second floor rear porch, where he emptied the contents of the bag and purse. He and Jones then ran to the park. They split up. Reynolds then heard voices. He jumped into Lake Michigan to avoid capture. After being in the water for a period of time, Reynolds cried for help.

Assistant State's Attorney Robert Bastone testified he interviewed Sam Jones and Kirk Reynolds separately on the morning of December 23, 1982. The witness informed each defendant of his Miranda rights, and each defendant indicated he understood his rights. Neither defendant requested an attorney, and both defendants made statements confessing to the robbery.

The parties stipulated that if Chicago police officers Rodriguez and Riggio testified they would state that at the time of their arrest on December 23, 1982, defendant Jones was a black male, between 17 and 20, 6 feet 2 inches, 250 pounds, clean shaven, and wearing a dark navy overcoat, and that defendant Reynolds was a black male about 17 to 20, 5 feet 10 inches, 180 pounds, and wearing a green army jacket.

• 1 First, defendants argue that the State failed to prove them guilty of armed violence because it did not establish the knife used by defendant Jones had a blade of at least three inches.

A person is guilty of armed violence if he commits any felony while armed with a dangerous weapon. (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2.) Armed with a dangerous weapon includes "knife with a blade of at least three inches in length * * * or any other deadly or dangerous weapon or ...


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